WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Herbalife International of America, Inc. v.
Case No. D2002-0101
1. The Parties
Complainant, Herbalife International of America, Inc., is a Nevada corporation located in Los Angeles, California, USA.
Respondent is with an address in Dallas, Texas, USA. M appears to be an informal fictitious name for Cleverson Ezeoha, an individual located in Dallas, Texas. References below to "Respondent" include Mr. Ezeoha.
2. The Domain Name and Registrar
The domain name at issue is (the Domain Name).
The registrar is Dotster, Inc., 11807 N.E. 99th Street, Suite 1100, Vancouver, Washington 98682, USA.
3. Procedural History
The Complaint was received on January 31, 2002.
Notification of the Complainant was sent to Respondent on February 11, 2002. Notification of Default was sent on March 5, 2002. No Answer or other response has been submitted by Respondent.
Mark V. B. Partridge was appointed Sole Panelist on March 28, 2002.
The Panel finds that the actions of the WIPO Arbitration and Mediation Center comply with the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules"), applicable to this proceeding, and that Respondent is in default.
4. Factual Background
Complainant has sold food supplements and personal care products under the mark HERBALIFE since 1980. The mark is the subject of federal trademark registrations owned by Complainant in the United States and 74 non-U.S. countries throughout the world.
In 1999, Respondent became an independent distributor of Complainant's products. Incorporated in the independent distributor agreement are Complainant's "Internet Guidelines", which prohibit use of Complainant's marks in the distributor's domain name.
Despite that agreement, Respondent registered the Domain Name on July 20, 1999, and has registered other domain names containing Complainant's mark. The registrations of the other domain names have expired.
Complainant has contacted Respondent regarding its objection to Respondent's registration and use of the Domain Name. Respondent has asked for compensation to relinquish the Domain Name. Although the Domain Name has been registered for nearly three years, it has never been used for an active site.
5. Parties� Contentions
A. Complainant
Complainant contends that the Domain Name is confusingly similar to a mark in which Complainant has rights; that the Respondent has no rights or legitimate interests in the Domain Name; and that the Domain Name was registered and is being used in bad faith.
B. Respondent
Respondent has failed to contest Complainant's claims.
6. Discussion and Findings
In the event of a default, Paragraph 14 of the Rules provides that "the Panel shall draw such inferences therefrom as it considers appropriate" and proceed to decision. Here, Respondent has failed to answer and is therefore in default. As a domain name registrant, Respondent has a contractual obligation to submit to these proceedings. Paragraph 4 of the Policy, which is incorporated into the Registration contract, specifically states that the Registrant is "required to submit to a mandatory administrative proceeding" in the event of an applicable dispute under the Policy. Under these circumstances, I believe it is appropriate to presume from the Registrant's default after notice that the Registrant does not dispute the facts presented by the Complainant.
Based on the facts presented, I find that the Domain Name is confusingly similar to a mark in which Complainant has rights. Complainant has shown rights in the mark HERBALIFE through use and registration. The addition of "MY" is not sufficient to avoid confusion. See Sony Kabushiki Kaisha v. Sin, Eonmok, WIPO Case No. D2000-1007 (November 16, 2000) (finding confusingly similar to SONY); ESPN, Inc. v. MySportsC, No. FA0008000095326 (NAF September 5, 2000) (finding confusingly similar to mark SportsCenter). In fact, the use of "my" as a prefix for personal pages at a web site has become common Internet practice. Therefore, I believe the addition of "my" to Complainant's mark increases the likelihood of confusion between the Domain Name and the Complainant's mark.
Respondent lacks any rights or legitimate interests in the Domain Name. It is not authorized or licensed to use Complainant's mark as a domain name. In fact, Complainant's Internet Guidelines for independent distributors prohibit such use. There is no evidence supporting any alternative basis for finding a legitimate interest.
I also find that Respondent registered and used the Domain Name in bad faith. Registration of the Domain Name was contrary to Respondent's obligations as an independent distributor of Complainant's products. The Policy includes a "non-exclusive" list of circumstances that may demonstrate bad faith. Other circumstances can also be considered. Bad faith registration is shown here by the registration of a domain name in contravention of an undisputed agreement between the parties. Moreover, bad faith use is shown here by Respondent's demand for compensation in exchange for relinquishing the Domain Name notwithstanding its agreements with Complainant.
7. Decision
For the reasons stated above, Complainant's request for transfer of the Domain Name is granted.
Mark V.B. Partridge
Sole Panelist
Dated: April 13, 2002
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